Job Muriithi Waweru v Mary Waruguru Munene [2020] KEELC 1640 (KLR)
The bottom line
#The Kerugoya Environment and Land Court refused to halt a land judgment, ruling that a lawyer's inaction cannot excuse missing appeal deadlines.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss for stay pending appeal
The applicant failed to demonstrate substantial loss
Relying on James Wangalwa v Agnes Naliaka Cheseto, the court held that execution being set in motion is a lawful process and does not by itself constitute substantial loss; the applicant must show execution would irreparably affect the essential core of his position as intended appellant. The supporting affidavit stated no substantial loss, so the first limb of Order 42 Rule 6 failed.
Unreasonable delay and advocate negligence
The application was brought after unexplained delay attributable to the applicant's own advocate
Judgment was delivered on 9th May 2019 and the application filed on 3rd February 2020. The applicant blamed A.N. Chomba & Co. Advocates for failing to file a defence and to inform him of the ruling of 24th October 2019. Following Velji Shahmad and Berber Alibhal Mawji, the court held that an advocate's omissions are visited on the principal, and pure inaction is not excusable, making the delay fatal.
Security for due performance of the decree
No security was given or offered
Order 42 Rule 6(2)(b) requires the applicant to furnish such security as the court orders for due performance of the decree. The applicant neither gave security nor undertook to abide by conditions, so the third requirement for stay was unmet.
Leave to appeal out of time under Section 79G CPA
Leave refused because the discretion could not be exercised on the material placed before the court
Citing Apa Insurance Limited v Michael Kinyanjui Muturi, the court noted the power is discretionary and not a matter of right; the applicant must place material before the court justifying exercise of the discretion. Neither the applicant nor his former advocates explained the failure to file a defence or appeal within time, so leave and deeming orders were refused.
Legal principles established
#- The acts and omissions of a duly instructed advocate are deemed to be acts of the client and blame cannot be shifted to the advocate
- Inaction by an advocate, as opposed to error or slip, does not excuse delay and should not be shielded from the client
- Extension of time under Section 79G CPA is discretionary, not a right, and requires material upon which the discretion may be exercised
- Execution alone does not amount to substantial loss under Order 42 Rule 6
Court orders
#- 1.The Notice of Motion dated 3rd February 2020 is dismissed with costs to the respondent
- On appeal from
- Kerugoya Chief Magistrate's Court
- ELC Case No. 101 of 2018
- Jurisdiction invoked
- Sections 1A, 1B, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Job Muriithi Waweru v Mary Waruguru Munene [2020] KEELC 1640 (KLR)", Case Analysis (2020). Kerugoya ELC Case (Notice of Motion dated 3rd February 2020, arising from Kerugoya Chief Magistrate's Court ELC Case No. 101 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1640/eng@2020-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.